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- Volume 19, Issue 1, 2003
South African Journal on Human Rights - Volume 19, Issue 1, 2003
Volume 19, Issue 1, 2003
Towards a reasonable approach to the minimum core : laying the foundations for future socio-economic rights jurisprudenceAuthor David BilchitzSource: South African Journal on Human Rights 19, pp 1 –26 (2003)More Less
The Constitutional Court has in a series of cases begun to develop its approach to adjudicating claims based on socio-economic rights. This article focuses on the Court's recent decision in <I>Minister of Health v Treatment Action Campaign</I> 2002 (5) SA 721 (CC) and considers three main issues. First, it is argued that there is a need to supplement the Court's approach based on reasonableness with an analysis of the obligations imposed upon the government by socio-economic rights. Secondly, an analysis of the obligations placed upon the government by socio-economic rights should include what has been termed a minimum core obligation to realise without delay the most urgent survival interests protected by the right. Despite recent pronouncements by the Court, there is a way in which the minimum core approach can be rehabilitated. Finally, this article considers the Court's claim that a minimum core approach attempts to force the government to do the impossible, and argues that the Court has misconstrued this approach. In so doing, the article considers important conceptual questions concerning the nature of socio-economic rights and the conditions under which they can be realised.
Barriers to justice : violations of the rights of deaf and hard-of-hearing people in the South African justice systemSource: South African Journal on Human Rights 19, pp 27 –56 (2003)More Less
This article discusses the violation of rights of disabled persons in the South African justice system. Its particular focus is the infringement of rights of deaf and hard-of- hearing people as a result of communication barriers in police stations and courts. While deaf and hard-of-hearing people comprise a small percentage of disabled individuals who come into contact with the justice system, the violations that occur are endemic and symptomatic of a disregard by justice officials of the rights and needs not only of deaf and hard-of-hearing persons, but of all disabled people. It is argued that a scheme comprising three components can guarantee the rights of deaf and hard-of- hearing people in South Africa's justice system. The first and most fundamental component is a recognition by justice officials that the right of the deaf and hard-of- hearing to be treated fairly in the justice system is constitutionally required. The second component requires amended and augmented legislative provisions to flesh out the content of the constitutional rights. The third component is that practical guidelines should be disseminated among justice officials to direct their day-to-day interactions with deaf and hard-of-hearing people. Such a scheme can prevent future violations of rights of the disabled and enhance the goal of equality for all South Africa's citizens.
Author Christopher J. RoedererSource: South African Journal on Human Rights 19, pp 57 –81 (2003)More Less
The film <I>The Matrix</I> (1999) usefully illuminates why some members of the South African legal community would like to maintain that there are important differences between direct and indirect horizontal application. The legal matrix is a metaphor for a view of the law as reducible to a web of formal rules that either is or should be sealed off from `external influences' like politics, morality and values in general. The post matrix challenge is to grasp the insight that constitutional values are the whole of the law in South Africa. What those values are and how they are to be invoked and weighed do not exist in a rule or set of rules. The matrix of rules no longer exists as a separate reality (if it ever did). The existence of any rule is contingent on the values that support it. The distinction between the two routes to horizontal application can only be seen to make a difference from within a matrix mindset. There is virtually no difference from within the post-matrix mindset embodied in the 1996 Constitution. The decisions in <I>Holomisa v Khumalo</I> 2002 (3) SA 38 (T) and <I>Khumalo v Holomisa</I> 2002 (5) SA 401 (CC) are evaluated from the perspective of `post-matrix legal reasoning'. Both decisions erode the illusory distinction between direct and indirect horizontal application of the Bill of Rights.
Promises to keep : individual rights of refugees and others under international human rights conventions and the Zambian ConstitutionAuthor Micheal S. GallagherSource: South African Journal on Human Rights 19, pp 82 –97 (2003)More Less
This article compares the status of five human rights accorded to refugees and others under the various international and regional human rights instruments to which Zambia is a party with municipal constitutional provisions and laws. The rights in question are the right to seek asylum, right to freedom from discrimination, right to freedom of movement, right to association, right to information. The article argues that an extension of the equitable doctrine of estoppel prevents Zambia from enforcing constitutional and statutory provisions that are in contravention of its international obligations.
Author Brian FarrellSource: South African Journal on Human Rights 19, pp 98 –117 (2003)More Less
This article examines an accused individual's right to be tried without delay before international criminal tribunals. It begins by tracing the historical development of this right and by discussing the justifications for its observance. The status of the right in domestic legal systems and in international human rights instruments is then outlined. The article then examines the right to a speedy trial as contained in the statutes of the ad hoc tribunals for Rwanda and the former Yugoslavia. The case law of these two tribunals is analysed and general rules are set forth. The challenges to successful protection of this right are also discussed. Finally, the article looks at the statute of the new International Criminal Court and makes suggestions on protection of the right to a speedy trial, based on the principles developed by the ad hoc tribunals.
Author Beth GoldblattSource: South African Journal on Human Rights 19, pp 118 –123 (2003)More Less
Author Kobus Van RooyenSource: South African Journal on Human Rights 19, pp 124 –129 (2003)More Less
Author Tiffany De Waynecourt-SteeleSource: South African Journal on Human Rights 19, pp 130 –132 (2003)More Less
Exploring the Core Content of Socio-economic Rights : South African and International Perspectives, Danie Brand and Sage Russel (eds) : book reviewAuthor Faranaaz VeriavaSource: South African Journal on Human Rights 19, pp 133 –139 (2003)More Less